COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Mc Clanahan and Senior Judge Fitzpatrick Argued at Richmond, Virginia

ALEX VAUGHAN AIRHART MEMORANDUM OPINION * BY v. Record No. 1219-05-2 J UDGE JOHANNA L. FITZPATRICK JANUARY 16, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Barnard F. Jennings, Judge Designate Tara-Beth Coleman, Assistan t Public Defender (Dov Szego, Assistant Public Defender, on brief), for appellant. Kathleen B. Martin, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Alex Vaughan Airhart was convicted of hara ssment by computer in violation of Code § 18.2-152.7:1. He argues the evidence was insuffi cient to prove that his communication with the victim was obscene and that he intended to coerce, harass or intimidate her. Airhart also argues the trial court erred in admitting evidence of a prior bad act. We hold that the evidence, under the facts of this case, wa s insufficient to prove his communication was obscene, and, thus, we reverse and dismiss his conviction 1 without considering whether he acted with an intent to coerce, harass or intimidate and whether the trial court erred in admitting evidence of a prior bad

act.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Because we reverse on this issue, we do not address appellant’s other issues raised.- 2 - BACKGROUND Airhart and the victim were college student s who met as transfer students in January 2004. They lived in the same dormitory a nd corresponded by instant messaging on their computers. In April 2004, the victim requested a study guide from appella nt who responded: “If you fuck me, I’ll give you your study guide.” Th e victim and her roomma te testified that she was upset and frightened by the incident. The vi ctim reported it to “Officer Smith” who told her to come to the station, but she was too frightened to do so. That was the last messaging until the fall semester began. On August 26, 2004, Airhart and the victim exchanged an instant message in which Airhart told the victim to leave his roommate alone and called her an “Italian whore.” Airhart also repeatedly wrote “fuck you” in the message. The victim asked Airhart to “stop talking” to her via an instant message. Airhart then wrote, “I’m going upstairs.” Ai rhart lived on the first floor of the dormitory, and the victim lived on the third floor. The victim stated that she “was upset . . . offended . . . scared” by Airhart’s in stant messages and notifie d the police who later arrested Airhart. On cross-examination, the vict im admitted that she had used the word “fuck” in prior instant message communica tions with Airhart. The August 2004 communication was the basis for the charge.
ANALYSIS Airhart contends that the evidence was in sufficient to prove a violation of Code § 18.2-152.7:1 because the words “Italian whore” and “fuck” as used in his August 2004 instant messages were not obscene and were not used with th e intent to harass, but rather were used as a means to express his irritation a nd frustration with the victim. “When faced with a challenge to the suffi ciency of the evidence, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly- 3 - wrong or without evidence’ to suppo rt it.” Crowder v. Commonwealth , 41 Va. App. 658, 662, 588 S.E.2d 384, 386 (2003) (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc )). Thus, we do not “substitute our judgment for that of the trier of fact.” Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the crime beyond a reasonable doubt.” Kelly , 41 Va. App. at 257, 584 S.E .2d at 447 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Code § 18.2-152.7:1 provides: If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, la scivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor. While we have not yet addressed Code § 18.2-152.7:1, we have interpreted a similarly worded statute, Code § 18.2-427. It provides: If any person shall use obscene, vulgar, profane, lewd, lascivious, or indecent language, or make a ny suggestion or proposal of an obscene nature, or threaten any i llegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, he shall be guilty of a Class 1 misdemeanor. In Allman v. Commonwealth , 43 Va. App. 104, 596 S.E.2d 531 (2004), the defendant telephoned an attorney who had represented a pa rty in a civil suit against him and repeatedly referred to the attorney as a “pussy.” We reve rsed and dismissed the conviction, finding that the language used by the defendant was not obscene. Id. at 111-12, 596 S.E.2d at 535. We noted that Code § 18.2-427 did not define obscenity, but reasoned the Code of Virginia is one body of law, and other sections may be referenced to where the same phraseology is used, and adopted- 4 - the definition of obscenity found in Code § 18.2-372. Id. at 109, 596 S.E.2d at 534. Code § 18.2-372 defines obscene as: that [1] which, considered as a whol e, has as its dominant theme or purpose an appeal to the prurient in terest in sex, that is, a shameful or morbid interest in nudity, se xual conduct, sexual excitement, excretory functions or products th ereof or sadomasochistic abuse, and [2] which goes substantially beyond the customary limits of candor in description or represen tation of such matters and [3] which, taken as a whole, does not have serious literary, artistic, political or scientific value. The first two prongs of the obscenity test codi fied in Code § 18.2-372 “involve ‘primarily factual issues, to be measured by “cont emporary community standards.”’” Allman , 43 Va. App. at 111, 596 S.E.2d at 534-35 (quoting State v. Harrold , 593 N.W.2d 299, 312 (Neb. 1999)). “As to the third prong . . . ‘the a ppellate court should apply a de novo review . . . since this determination does not depend upon community standards.’” Id. at 111, 596 S.E.2d at 535 (quoting Harrold , 593 N.W.2d at 313). The word “whore” is defined as “a woman wh o practiced unlawful sexual commerce; one who prostitutes her body for hire.” Webster’s Third New International Dictionary 2612 (1993). The word “fuck” is defined as “to engage in coit us with - sometimes used interjectionally with an object (as a personal or reflexive pronoun) to express anger, contempt, or disgust .” Merriam-Webster’s Collegiate Dictionary 505 (11th ed. 2004) (emphasis added). Under these circumstances, we hold, using th e definition of obscene set forth in Code § 18.2-372, and the requisite standard of review, Ai rhart’s use of the word “whore” and repeated use of “fuck you,” were insufficient to permit a reas onable trier of fact to conclude the references were obscene. See Cohen v. California , 403 U.S. 15, 20 (1971) (findi ng that “[w]hatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some si gnificant way, erotic”). Altho ugh the words “whore” and “fuck” are sexually explicit, Airhart’s usage of the words was not erotic and did not have the purpose to- 5 - appeal to a prurient interest in sex, but was used in a communication where he told the victim to leave his roommate alone. Airhart’s use of th ese words, while offensive and coarse, was a method to show his anger, contempt, or disgust w ith the victim and to direct her away from his roommate. Thus, the words failed to meet the definition of obscene as required by Allman and Code § 18.2-372. Accordingly, Airhart’s conviction for harass ment by computer in violation of Code § 18.2-152.7:1 is reversed and dismissed. Reversed and dismissed.- 6 - McClanahan, J., concurring. I concur in the result, but only because I believe we are bound by the ratio decidendi of Allman v. Commonwealth , 43 Va. App. 104, 596 S.E.2d 531 (2004). In my opinion, Allman incorrectly adopted the defin ition of “obscene” in Code § 18.2-372 to apply to Virginia’s telephone harassment statute, C ode § 18.2-427, reasoning that the C ode of Virginia is one body of law. By its own terms, however, Code § 18.2-372 is expressly limited to Article 5 of Title 18.2, Chapter 8, addressing crimes involving obs cene materials—not crimes proscribing harassing conduct. (“The word ‘obscene’ where it appears in this article shall mean . . . .” Code § 18.2-372 (emphasis added)). 2
Allman then wrongly imported pure First Amendment free speech principles to limit the proscription of this harassment statute to only wo rds of intimidation that “appeal to the prurient interest in sex,” i.e., words that meet the definition of “obscene” for purposes of First Amendment analysis. The statute in this case (Code § 18.2-152.7:1), like the one at issue in Allman (Code § 18.2-427), proscribes intimida ting, harassing conduct—not merely speech. 3 The words used to exhibit such conduct are not protected speech under the First Amendment . See Virginia v. Black , 538 U.S. 343 (2003); Watts v. United States , 394 U.S. 705 (1969). As the United States Supreme Court explained in Black , “the First Amendment . . . permits a State to ban a ‘true threat.’” Black , 538 U.S. at 359 (“‘Threats of violence are outside the First

2 Code § 18.2-427, at issue in Allman , is located in Article 6 of Title 18.2, Chapter 9. Code § 18.2-152.7:1, at issue in this case, is located in Article 7.1 of Title 18.2, Chapter 5.

3 Though the majority need not address the hara ssment issue since its decision is based on the definition of “obscene” in Code § 18.2-372, as interpreted by Allman , Airhart’s communications with the victim cl early showed he intended to use his computer to harass and intimidate her. The language he used thr oughout the message was intimidating and coercive. Additionally, he threaten ed to go upstairs where the victim and her dorm room were located. The trial judge, after viewing the witnesses a nd weighing their credibil ity, found that Airhart intended in his instant message to harass the victim.- 7 - Amendment .’” (quoting R.A.V. v. City of St. Paul , 505 U.S. 377, 388 (1992))). And “[i]ntimidation in the constitutionally proscribable sens e of the word is a type of true threat.” Id. at 360. Because the statute here and in Allman address threatening a nd harassing conduct, the definition of “obscene” under a pure First Amendment free speech analysis does not apply.